Klink v. Wood et al

Filing 22

MEMORANDUM. Signed by Judge Gregory M. Sleet on 1/9/2018. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
)
)
Plaintiff,
)
)
v.
)
)
NORMAN WOOD, in his individual capacity
)
as the Town of Smyrna, Delaware Police Chief
)
)
TORRIE JAMES, in his individual capacity
)
as a Town of Smyrna, Delaware Police Lieutenant )
)
SHAWN BENTON, in his individual capacity
)
as a Town of Smyrna, Delaware Police Corporal
)
)
and
)
)
THE TOWN OF SMYRNA, DELAWARE
)
)
Defendants.
)
)

PHILLIP KLINK,

Civil Action No. 16-1217-'GMS

MEMORANDUM
I.

INTRODUCTION
·On Deceniber 16, 2016, Phillip Klink filed a complaint against Defendants Norman Wood,

Torrie James, Shawn Benton, and the Town of

Smyrna~

Delaware ("the Town") raising a due

process claim pursuant to 42 U.S.C. §§ 1983 and 1988 and a claim pursuant to the Delaware
Whistleblowers' Protection Act. (D.I. 1if69-73, 74--78.) On February 15, 2017, Defendants filed
a Motion to Dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. (D.I. 5.) On
March 1, 2017, Klink responded by filing his first amended complaint to cure his pleading defects.
(D.1. 6.) On March 15, 2017, Defendants filed a second Motion to Dismiss for Failure to State a
Claim that is currently pending before the court. (D.I. 7.) No scheduling order has been entered

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
)
)
Plaintiff,
)
)
v.
)
)
NORMAN WOOD, in his individual capacity
)
as the Town of Smyrna, Delaware Police Chief
)
)
TORRIE JAMES, in his individual capacity
)
as a Town of Smyrna, Delaware Police Lieutenant )
)
SHAWN BENTON, in his individual capacity
)
as a Town of Smyrna, Delaware Police Corporal
)
)
and
)
)
THE TOWN OF SMYRNA, DELAWARE
)
)
Defendants.
)
)

PHILLIP KLINK,

Civil Action No. 16-1217-'GMS

MEMORANDUM
I.

INTRODUCTION
·On Deceniber 16, 2016, Phillip Klink filed a complaint against Defendants Norman Wood,

Torrie James, Shawn Benton, and the Town of

Smyrna~

Delaware ("the Town") raising a due

process claim pursuant to 42 U.S.C. §§ 1983 and 1988 and a claim pursuant to the Delaware
Whistleblowers' Protection Act. (D.I. 1if69-73, 74--78.) On February 15, 2017, Defendants filed
a Motion to Dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. (D.I. 5.) On
March 1, 2017, Klink responded by filing his first amended complaint to cure his pleading defects.
(D.1. 6.) On March 15, 2017, Defendants filed a second Motion to Dismiss for Failure to State a
Claim that is currently pending before the court. (D.I. 7.) No scheduling order has been entered

in the instant case. On May 15, 2017, the court referred the parties to Chief Magistrate Judge Mary
Pat Thynge for the purpose of exploring Alternative Dispute Resolution. On June 15, 2017, the
parties engaged in a telephonic mediation conference with Chief Judge Thynge. No settlement
ensued. (D.I. 15.)
Before the court is Klink's Motion for Leave to Amend the First Amended Complaint 1
filed on August 8, 2017, which seeks to voluntarily dismiss two Defendants-James and Bentonand to incorporate facts from a transcript of recorded conversations between Klink and Defendants
produced to Klink on June 1, 2017. (D.I. 17 a 4.) Defendants oppose Klink's Motion. (D.I. 18.)
For the reasons that follow, the court will grant Klink's Motion for Leave to Amend. (D.I. 16.)
II.

BACKGROUND
Klink was a sworn police officer with the Smyrna Police Department ("Smyrna PD") for

twenty years. (D.I. 16-1 at if8-9.) Prior to his departure from the Smyrna PD, Klink was a
Lieutenant serving under Defendant Wood. (D.L if 9.) In the summer of 2016, the Smyrna PD
union returned a vote of "no confidence" concerning Wood and the misconduct related to his
leadership of the Smyrna PD. (D.I. 16-1 at if 14, 23.) Wood's alleged misconduct also involved
Defendant James. (D .I. 16-1 at if 25.) Following the vote, the Delaware Attorney General's office
began investigating Wood, James and the Smyrna PD. (D.I. 16-1 if 30.) Klink alleged that his
relationship with Wood and James began to deteriorate after the vote. (D.I. 16-1 at if 28.) For
example, Klink claimed that Wood repeatedly denied his requests for police training, which was
necessary for Klink to maintain his certification to be a police officer in Delaware. (D.I. 16-1 at if

Plaintiff's counsel has failed to follow D. Del. LR 15. l(b) which requires the party seeking to amend to
include a proposed amended pleading indicating in what respect it differs from the pleading that it seeks to amend
by bracketing or striking through materials to be deleted and underlining materials to be added. This may seem like
a small thing-a nudge. Rest assured it is not! Rules of procedure exist for a reason. One of the reasons, in this
instance, is to enable the court to expeditiously and efficiently identify the changes a party proposes to make to a
pleading without having to rummage unguided through the filings at issue. These small, sometimes not, bites of time
add up and can be quite debilitating-something like lingchi or death by a thousand cuts. Note to the Bar -please
follow the rules!

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29.) Klink alleged that Wood, or someone acting on Wood's behalf, placed a citizen complaint
filed against Defendant Benton in Klink's office desk drawer on July 19, 2016. (D.I. 16-1 at ii 22.)
The citizen complaint was received on or around May 2015 and contained allegations that Benton
engaged in sexual relations while on-duty. (D .I. 16-1 at if 11..) The citizen complaint, to Klink' s
knowledge, was not addressed by the Town or Wood. (D.I. 16-1 at ii 14-16.) Klink believed the
citizen complaint was placed in his drawer in an effort to frame him and to cause him to resign or
be terminated for failing to properly address the citizen complaint. (D.I. 16-1 at ii 22.)
In October of 2016, Benton came into Klink's office to discuss Wood and the Smyrna

PD-specifically issues related to Klink's knowledge and discussions about Wood's misconduct.
(D.I. 16-1

if 33-34.)

Unbeknownst to Klink, and without Klink's consent, Benton recorded their

conversation and shared it with Wood. (D.I. 16-1 at ii 33-35.) The next day, Wood summoned
Klink into his office to discuss rumors ofK.link's discussions about Wood's misconduct with other
police officers. (D.I. 16-1 at

ii

40-41.) Again, unbeknownst to Klink, Wood recorded their

conversation and Klink alleges Wood was in control of the recording device throughout the
conversation. (D.I. 16-1 at

ii 42.)

Wood questioned Klink about his conversations with other

officers regarding Wood's alleged misconduct and played the recorded conversation between
Klink and Benton from the previous day. (D .I. 16-1 at Ex. A at 18-2 l.)
Wood told Klink that he must either resign on the spot or he would be put on administrative
leave and suspended pending termination. (D.I. 16-1 at Ex. A at 24, 33.) Klink asked to speak
with an attorney and his wife. (D.I. 16-1 at Ex. A at 26.) After telling Klink to "[m]ake [his] own
decision," Wood permitted Klink to speak with his wife privately, but only permitted Klink to
speak with an attorney in Wood's presence and he intervened on the phone call. (D .I. 16-1 at Ex.
A at 32-33.)

3

After Klink's phone conversations, Klink continued to express concerns about resigning
and requested more time to make a decision. (D.I. 16-1 at Ex. A at 33-34.) Klink was told that
his only alternative was to be placed on administrative leave for "telling some of [his] junior
officer's things that [Klink] shouldn't be telling them." (D.I. 16-1 at Ex. A at 34.) After engaging
in some discussion about Klink's retirement date, Klink resigned. (D.I. 16-1 at Ex. A. at 37.)
Klink attempted to get his personal belongings from his office on his way out, but Wood informed
him that his computer and building access had already been terminated. ·(D .I. 16-1 at if 48.) Wood
used his credentials to let Klink into his office and watched as he gathered his be1ongings while
instructing him that his desk was off limits. (D.I. 16-1 at if 49-52.)
Later that same day, Wood engaged in yet another recorded conversation with Klink-this
time over the phone. (D.I. 16-1 at

if 54-56.)

Wood called Klink to tell him that he would give

him two days to decide if Klink wanted to have a hearing instead of proceeding ·with his
resignation. (D.I. 16-1 at Ex. A at 43.) Klink did not opt to rescind his resignation. (D.I. 16-1 at
Ex. A at 43.)
Two weeks later, Klink spoke with an investigator with the Delaware Attorney General's
office and corroborated various allegations ofWood' s and Jam es' conduct at the Smyrna PD. (D .I.
16-1 at if 58-59.)
Klink filed the instant suit alleging violations of his procedural due process rights under 42
U.S.C. §§ 1983 and 1988, and a claim against the Town under Delaware Whistleblowers'
Protection Act. (D.I. 16-1 at

if 60....:.65, 66-71.)

Defendants argue that they are protected by the

doctrine of qualified immunity because Klink voluntarily resigned from his position and, as a
result, his complaint should be dismissed. (D.I. 17.)

4

III.

STANDARD OF REVIEW
The court is to "freely give leave" to parties to amend their pleadings "when justice so

requires." Fed. R. Civ. P. 15(a)(2). "Leave to amend must generally be granted unless equitable
considerations render it otherwise unjust." Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir.
2006). Such equitable considerations inc1ude the existence or absence of "undue delay, bad faith
or dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futilitY of amendment." Foman v. Davis, 371U.S.178, 182
(1962).

IV.

DISCUSSION
Klink asks the court to grant him leave.to amend his First Amended Complaint to dismiss

James and Benton as Defendants and to include additional facts to support his due process and
Delaware Whistleblowers' Protection Act claims. Klink contends that amending his First
Amended Complaint would neither be futile nor would the amendment result in undue prejudice
to the Defendants. Defendants argue that permitting the amendment would be futile because it
does not offer additional facts that refute their protection under the doctrine of qualified immunity
and the amendment would result in undue prejudice.
For the reasons that follow, the court will grant Klink's Motion to Amend his First
Amended Complaint.
A. Klink's Motion to Amend is Not Futile
An amendment will be futile if it could not survive a motion to dismiss. Enzo Life Scis.,

Inc. v. Digene Corp., 270 F. Supp. 2d 484, 489 (D. Del. 2003). "To determine whether a proposed
amendment is futile, the Court applies the standards for a Rule 12(b)(6) motion to dismiss and
must decide whether, accepting all the well-pleaded facts of the proposed amendments as true, the
party states a claim upon which relief can be granted." Lynch v. Coinmaster USA, Inc., 2007 WL
5

39433, at *2 (D. Del. Jan. 4, 2007).
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements," are inadequate to state a claim. Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009). Plaintiffs
must provide sufficient factual allegations "to state a claim to relief that is plausible on its face."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Determining whether a complaint states a
plausible claim for relief will ... be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (2009).

1. Qualified Immunity
Defendants argue that the complaints against them are official capacity claims barred by
the doctrine of qualified immunity. (D.I. 7 at 6.) Defendants claim that Klink's Second Amended
Complaint is deficient because he voluntarily resigned from his position and, thus, cannot allege a
cognizable constitutional violation. (D.I. 17 at 11.)

Klink contends that he has properly alleged

that he was constructively discharged from his position and, therefore, deprived of his protected
property interest in his position with the Smyrna PD in violation of his right to procedural due
process. (D.I. 16-1 if61-65.)
"The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231
(2009)(intemal quotations omitted). Qualified immunity is an immunity from suit, "rather than a
mere defense to liability." Hubbard v. Taylor, 399 F.3d 150, 167 (3d Cir. 2005). The appropriate
analysis to determine whether qualified immunity applies is whether the plaintiff has established
facts that "make out a violation of a constitutional right" and whether that right was "clearly
established" at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).

6

To establish a claim under§ 1983 for deprivation of procedural due process, a plaintiff
must prove that he was deprived of a property interest under the color of state law and the
procedures available to him did not provide him with due process. Dykes v. Southeastern Pa.

Transp. Auth., 68 F.3d 1564, 1570 (3d Cir. 1995). If a protected property interest "has been or
will be deprived, procedural due process requires that the governmental unit provide the individual
with notice and a reasonable opportunity to be heard." Rusnak v. Williams, 44 Fed. App'x. 555,
558 (3d Cir. 2002). As a general rule, "voluntary separation cannot serve as a basis for a due
process claim and resignation is presumed to be voluntary." Stiner v. Univ. of Del., 2004 WL
1949545 (D. Del. Aug. 27, 2004); citing Leheny v. City of Pittsburgh, 183 F.3d 220, 227-28 (3d
Cir. 1998). "This presumption remains intact until the employee presents evidence to establish
that the resignation or retirement was involuntarily procured."

Leheny, 183 F.3d at 228.

Resignation is deemed involuntary in two circumstances: (1) the employer forces the resignation
or retirement by coercion or duress, or (2) the employer obtains the resignation or retirement by
deceiving or misrepresenting a material fact to the employee. Rusnak, 44 Fed. App'x at 558.
Klink alleges a violation of his due process rights because his resignation was involuntarily
procured. (D.I. 19 at 10.) Defendants argue that Klink has not pled a plausible procedural due
process violation because he voluntarily resigned from his job. (D.I. 7 at 10.) Defendants argue
that Klink' s Second Amended Complaint and its incorporation of the transcribed conversation
shows he voluntarily resigned because he was not faced with a decision between termination and
resignation, and that Wood offered Klink the opportunity to be suspended pending a hearing. (D .I.
17 at 12.) Klink responds that based on Wood's actions, his resignation was coerced and offered
under duress. (D.I. 19 at 10.)
The court must determine whether, considering the facts in the light most favorable to
Klink, he was constructively discharged. Voluntariness is what distinguishes constructive
7

discharge from a resignation. In order to be voluntary, a decision must be informed, free from
fraud or other misconduct, and made after due consideration. Baker v. Consol. Rail Corp., 835 F.
Supp. 846, 852 (W.D. Pa. 1993), affd, 30 F.3d 1484 (3d Cir. 1994). A court may find a resignation
to be involuntary if induced by coercion or duress thereby "abrogat[ing] his ability to exercise free
choice." Rusnak, 44 Fed. App'x at 558.
Klink claims that an examination of the surrounding circumstances suggests that his
resignation was not the product of free choice. First, Klink alleged facts that suggest that he was
pressured to make an immediate, on-the-spot decision between resigning and facing administrative
leave pending an investigation. (D.I. 16-1 at Ex. A at 24-25.) Next, Klink was only permitted to
consult an attorney in the presence of Wood who interrupted their conversation to speak with the
attorney himself.

(D.I. 16 at

if 40-47, Ex.

A. at 33.)

Finally, Klink discovered that Wood

preemptively cut off Klink's access to his work computer and his office sometime before Klink
decided to resign. (D.I. 16-1 at if 48.) These factual allegations are sufficient to state a plausible
claim that Klink was constructively discharged from his position at the Smyrna Police Department.

2. Delaware Whistleblowers ' Protection Act
Defendants next argue Klink failed to allege a violation of Delaware's Whistleblowers'
Protection Act ("WPA"). 19 Del. C. § 1701 et seq. Section 1703 provides:
An employer shall not discharge, threaten, or otherwise discriminate against an

employee regarding the employee's compensation, terms, conditions, location,
or privileges of employment:
(1) Because the employee, or a person acting on behalf of the employee, reports
or is about to report to a public body, verbally or in writing, a violation which
the employee knows or reasonably believes has occurred or is about to occur,
unless the employee knows or has reason to know that the report is false.
19 Del. C. § 1703. Defendants argue that Klink was not a whistleblower because he held
on to the information regarding Wood's misconduct and divulged it only after separating

8

from the Smyrna PD. (D.I. 7 at 13.) Klink argues that Defendants feared that Klink
would cooperate with the Delaware Attorney General investigation and would
corroborate allegations of illegal and unconstitutional conduct committed by Defendants.
(D .I. 8 at 14.) Both parties were aware that, following the vote of "no confidence," the
Delaware Attorney General would conduct an investigation involving Wood. (D.I. 16-1
at if 58-59.) After the vote, Klink alleges that he discovered the citizen complaint, which
he believed was planted by Wood or someone acting on Wood's behalf to frame Klink.
(D .I. 16-1 at if22-23.) The transcript attached to the Second Amended Complaint includes
additional facts that suggest that Wood sought to prevent Klink from divulging his
knowledge of Wood's misconduct to others. (D.I. 16-1 at Ex. A at 18-21.) It seems
evident that Klink has plead sufficient facts to support a claim under Delaware's WP A.
B. Klirik's Motion to Amend Would Not Cause Undue Prejudice

Defendants, the non-movant, "bears the burden of proving that actual prejudice will result
from amendment of a complaint." See Johnson v. Geico Cas. Co., 673 F. Supp. 2d 244, 251 (D.
Del. 2009). Defendants cannot meet this standard. In fact, Klink's amendment accords with
Defendants' request in its second Motion to Dismiss to dismiss Benton and James as defendants.
(D.I. 7 at 9-10.)

Further, Klink claims-and Defendants do not dispute-that Defendants

threatened to file a Rule 11 motion if Klink did not propose the instant motion to amend. (D.I. 19
at 10.) Klink, again, acted in conformity with Defendants' request. Finally, Klink adds no
additional arguments, but only seeks to add additional factual information from the transcript,
which Defendants gave Klink on June 1, 2017-well after the briefing was completed for

9

Defendants' second Motion to Dismiss. (D.I. 7 at 4.) Therefore, the court finds that Klink's
Second Amended Complaint will not prejudice Defendants.
V.

CONCLUSION

For the foregoing reasons, the court grants Plaintiffs Motion to Amend. (D.I. 16.) Thus,
Defendants' Second Motion to Dismiss for Failure to S

January

---51.-, 2018
GE

10